UMOA INVESTMENT LIMITED VS WASUA MATHEKA AND MUSYOKA WASUA AND 2 Others

1.The Plaintiff filed the Notice of Motion application dated 19th January 2015 seeking orders that:-
i.The Honourable Court be pleased to transfer SPMCC ELC NO 27 OF 2014 from the Senior Resident’s Magistrates’ Court at Mutomo to itself and try and dispose of the same.
ii.That there be a stay of further proceedings in SPMCC 27 of 2014 until the hearing and determination of this application.
iii.Costs of this application be provided for.

2.The Applicant claims the lower court suit, Mutomo SPMCC ELC 27 of 2014, was filed when the Environment and Land Court had not started its sittings at Machakos.

3.The said suit seeks the removal of nuisance/trespass caused by the Defendants and an order of eviction, permanent injunction, damages and costs. They claim that the Defendants in their defence challenged the Applicant\'s ownership of the land and claimed that the value of the land was higher than the subordinate court\'s pecuniary jurisdiction.

4. Counsel for the applicant deposed that the Environment and Land Court is the proper Court vested with the appropriate jurisdiction to try and dispose of the suit.  He states that it is in the interests of justice that the parties be heard by the appropriate court and the real questions in controversy be identified, tried and adjudged. The Applicant argues that the defendants/respondents stand to suffer no prejudice should the honourable court make the orders prayed for in this application be granted.

The Respondents\' Case

5.Counsel for the Respondents filed a replying affidavit deposing that the application is not brought in good faith since counsel for the applicant seeks transfer from the Court in Mutomo to the Environment and Land court when the issue of jurisdiction formed the basis of a preliminary objection filed by the Respondents. The said preliminary objection was canvassed by way of written submissions before the Magistrate\'s Court at Mutomo, and the submissions were concluded and a mention date taken for fixing a ruling date.

6.Counsel deposed that the applicant has now agreed and submitted that the subordinate court has no jurisdiction to determine this matter and the instant application is only meant to hijack and frustrate the ruling on the preliminary objection.

7.He also stated that the value of the subject land also known as Winumba Ranch has always been more than the pecuniary jurisdiction being valued at over Ksh.85 million. Counsel for the respondent therefore states that the application has no merit because by admitting that the magistrate\'s court lacks jurisdiction, there was no suit filed which the court can transfer to itself.

The Applicant\'s Submissions

8.Counsel for the Applicant submitted regarding the respondents\' preliminary objection, that he filed the present application to avoid wastage of the time and resources of the Court. The Applicant submitted that the issues raised in their plaint dated 22nd August 2014 are issues of the defendants’ continued trespass on the suit property  plot No.100 Katilini Adjudication Section whose ownership they claim. On the other hand, the respondents claim ownership over the suit property.

9.The Applicant’s submission is that at the time of filing the suit, the Senior Principal Magistrate’s Court had jurisdiction to hear and determine the matter as a special gazetted court.

10.The Applicant relied on Section 18(1)(b) of the Civil Procedure Act and submitted that this court, having the same status as the High Court, has the power to transfer the suit to itself. It was also submitted that it is a waste of judicial time and resources for the respondents to on one hand sign a consent to have the matter appropriately transferred while on the other hand refusing to have consent adopted as an order of the court and relying upon the holding in the case of John Mwangi Karanja vs Alfred Ndiangui(2011)eKLR.

11.Counsel submitted that no prejudice will occasion the respondents if the transfer is effected and that this court has the mandate to hear and determine the suit pursuant to the jurisdiction of the Court granted under Sections 13(2),(3) and (4) of the Environment and Land Court Act. He also highlighted that the matter falls within the territorial jurisdiction of this Court.

12.Counsel relied on the holding in the case of Oceanic Towers Limited v. Husseini Builders Limited(2019)eKLR which dealt with transferring a suit filed at a Chief Magistrate’s court to the High Court for hearing and determination.
13.Regarding the matter of costs of the application, Counsel for the Applicant relied on Section 27 of the Civil Procedure Act which provides that costs of and incidental to suits shall be in the discretion of the court. He relied on  the holding of Justice G.I. Nzioka in the case of Peter Muriuki Ngure v. Equity Bank (K) Ltd(2018) eKLR where the definition of “costs follow the event” was elaborated.

14.Counsel for the Respondents was granted time to file written submissions but they are not traceable in the online filing system.

Analysis and Determination
15.The application herein seeks an order of withdrawal of the suit Mutomo  SPMCC ELC NO 27 of 2014 and transfer of the suit to itself for hearing and determination and/or disposal.

16.The transfer is sought on the grounds of lack of pecuniary jurisdiction by the subordinate court. Counsel for the Applicant relied on the provisions of Section 18(1)(b)  of the Civil Procedure Act CAP 21. The entire section provides  this court with the power to withdraw and transfer suits instituted in subordinate courts and states that:
(a)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—
(i) try or dispose of the same;
(ii)or transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.

17.Counsel for the Applicant submits that the subject matter of the suit is nuisance/trespass and that taking into account the defence filed claiming that the value of the land is more than the subordinate court\'s pecuniary jurisdiction, this court is the right forum to hear and determine the case as clothed with the jurisdiction under Section 13 of the Environment and Land Court Act.

18.The pecuniary jurisdiction of the Magistrates Court is spelt out in Article 169 of the Constitution and Section 7(1) of the Magistrates’ Courts Act. Section 7(1) of the Magistrates’ Courts Act provides that:
“A magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—
(a) Twenty million shillings, where the court is presided over by a chief magistrate;
(b) Fifteen million shillings, where the court is presided over by a senior principal magistrate;
(c) Ten million shillings, where the court is presided over by a principal magistrate;
(d) Seven million shillings, where the court is presided over by senior principal magistrate; or
(e) Five million shillings, where the court is presided over by a resident magistrate.

27.In the instant case, the question is whether the suit filed by the plaintiff where they admit that “the subordinate court’s jurisdiction could be wanting” and “ the value of the land in dispute is in excess of the subordinate pecuniary jurisdiction” can competently be transferred, at the instance of this Court.

28.The Respondents oppose this application on the grounds that jurisdiction was the essence of their preliminary objection which was yet to be determined by the subordinate court. That the suit land exceeds the pecuniary jurisdiction of the Senior Principal Magistrate’s Court at Mutomo and this was always a fact admitted in other suits.

29. Counsel for the Applicant relied on the case of John Mwangi Karanja V Alfred Ndiangui [2011] eKLR where it was held by the Court that:
“It has been settled law for many years now that this court has no jurisdiction under section 18 of the Act to transfer a case from one subordinate court to another if the original court had no jurisdiction in the first place to hear and determine the suit. This jurisprudence was founded upon the well-known Ugandan Case of KAGENYI –VS- MUSIRAMO & ANOTHER [1968] E.A. 43 where it was held that whereas section 18 of the Ugandan Civil Procedure Act (which is identical to section 18 of our own Civil Procedure Act) gives the High Court a general power of transfer of all suits, which power may be exercised at any stage of the proceedings, even suo motu, by the court, an order for transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it……… it appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. 
If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. What prejudice would any party suffer in that event$1 After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act (section 1A (1)).\"

30.The question of the court\'s competence to transfer a suit filed in a court without jurisdiction has been the subject of numerous decisions of the Court of Appeal. In the case of Phoenix of E.A. Assurance Company Limited vs. S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held that:
“...Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction”

31.This court is also bound by the decisions of the Court of Appeal which made the following determination in the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR:
\"It is to be borne in mind that the court\'s power to transfer proceedings from one court to another is discretionary. In Heinz Isbrecht v Charles Ochieng Ndiga (Msa) Misc. Application No. 20 of 1997, relied on by the appellant, was held: \"When making or refusing an order of transfer the court will have regard to the nature and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power which will be exercised having regard to all the circumstances of the case…..”

32.The Court went on to state that:
“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow the court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the \"O2\" principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.\"

33.The Court in the case of Abraham Mwangi Wamigwi V Simon Mbiriri Wanjiku & Another[2012]eKLR quoted several authorities on this matter while holding as follows:
“The law relating to transfer of suits from subordinate Courts to the High Court or any transfer for that matter is very clear. In Kagenyi vs. Musiramo (supra), Sir Udo Udoma, CJ made it clear that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it. In Ali Abdi Sheikh vs. Edward Nderitu Wainaina & Others (supra), Koome, J (as she then was) found that since the plaintiff had filed a suit in respect of a claim to land whose value exceeded Kshs. 500,000.00 in the subordinate court the suit could not be transferred since the general powers of the court to transfer suits under section 18 of the Civil Procedure Act cannot be exercised in a matter where the suit was filed in a court without jurisdiction. A similar view was taken by the same Judge in Rainbow Manufacturers Limited vs. National Bank of Kenya (supra).
Dealing with the same issue of jurisdiction, J B Ojwang, J (as he then was) in the Boniface Waweru Mbiyu vs. Mary Njeri & Another expressed himself as follows: \"Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law, and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity, and it follows that such matter has no capacity to be transferred to any other Court\".
It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognized by law. It is now settled law that where a Court finds that it has no jurisdiction, it must immediately down its tools and proceed no further.”

34.The court has looked at the application dated 19th January 2014 and noted that though the affidavit in support of the application mentions in paragraph 10 an annexure containing a bundle of relevant papers as filed in the Magistrates court, the said documents are not attached to the said affidavit. The court is therefore not in a position on its own to determine the nature of the suit that was filed before the Magistrates Court and the defence said to have been raised. However, relying on the contention by counsel for the Applicant and Counsel for the Respondents that the Court at Mutomo may not have the requisite jurisdiction, the court declines to withdraw the suit from the Principal Magistrates Court at Mutomo and transfer it to this court for hearing and determination.

35.The court finds that the application dated 19th January 2015 lacks merit. Considering the chequered history of the application herein having traversed the courts\' within the region and the inconvenience and attendant costs to the parties,  the court exercises it’s discretion and finds it in the interests of justice for  each party to bear their own costs of the application.

36.The final order of the court is that the application dated 19th January 2015 is hereby dismissed. Each party to bear their own costs of the application.
Dated, Signed and Delivered at Kitui this 26th  Day of  September 2024

L. G. KIMANI
JUDGE
Ruling read in open Court and virtually in the presence of
Munyasya for the Applicant
Kiluva holding brief for Makundi for the Respondents